Management Services Agreement
This Management Services Agreement (the
“Agreement”) is entered into effective the 1st day of
January 2010 (the “Effective Date”), by and between White Mountain Titanium
Corporation, a Nevada corporation (“WMTC”), and 0834406 BC Ltd., a corporation
created under the laws of British Columbia, Canada (the “Service
Provider”).
RECITALS:
A. WMTC,
through its wholly owned Chilean subsidiary, owns a rutile mineral property
known as the Cerro Xxxxxx project located in Region III of Chile and is or
proposes to carry on mining operations on the project.
B. WMTC
had previously entered into a management service agreement dated September 8,
2006, as subsequently amended (the “Original Agreement”), with X. X. Xxxxxxx,
the owner of the Service Provider herein (the “Original Service
Provider”).
C. Under
the Original Agreement the Original Service Provider performed services as Chief
Financial Officer (“CFO”) of WMTC.
D. The
Original Agreement expired on September 1, 2009, and was continued on a
month-to-month basis through December 31, 2009.
E. WMTC,
wishing to continue the services of the Original Service Provider under a
successor management services agreement with duties and compensation unchanged
from the Original Agreement.
G. WMTC
proposes now to engage the Service Provider, an entity owned and controlled by
the Original Service Provider, under the terms of this Agreement to provide the
continued services of the Original Service Provider.
NOW, THEREFORE, in consideration of the
mutual terms and conditions set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1.
Services and
Duties.
a. Management and
Administrative Services. Service Provider shall provide
approximately 50% of one man person’s available time to WMTC-related issues,
including, but not limited to, the following:
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Prepare,
or supervise the preparation of, WMTC’s quarterly and annual financial
statements in conformity with U.S. Generally Accepted Accounting
Standards.
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Prepare,
or supervise the preparation of, the MD&A sections and other financial
information for WMTC’s quarterly and annual reports to be filed with the
U.S. Securities and Exchange Commission on Forms 10-QSB and 10-KSB,
respectively (the “SEC Reports”).
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Prepare
annual operating budgets as well as monthly cash flow and variance reports
for distribution to the board of
directors.
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Establish
and maintain disclosure controls and procedures (as defined in U.S.
Securities Exchange Act Rules 13a-15(e) and 15d-15(e)) in order to (i)
ensure that material information relating to WMTC, including its
consolidated subsidiaries, is made known to management by others within
those entities, particularly during the period in which any SEC Report is
being prepared; (ii) evaluate the effectiveness of WMTC’s disclosure
controls and procedures and present in its SEC Reports the conclusions
about the effectiveness of the disclosure controls and procedures, as of
the end of the period covered by such report based on such evaluation; and
(iii) report in any SEC Report any change in WMTC’s internal control over
financial reporting that has materially affected, or is reasonably likely
to materially affect, WMTC’s internal control over financial
reporting.
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Disclose
to WMTC’s auditors and the audit committee all significant deficiencies
and material weaknesses in the design or operation of internal controls
over financial reporting which are reasonably likely to adversely affect
the ability of WMTC to record, process, summarize and report financial
information and any fraud, whether or not material, that involves
management or other employees who have a significant role in WMTC’s
internal control over financial
reporting.
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Perform
such other related functions as directed by the President or Executive
Chairman or as customarily performed by a chief financial
officer.
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b. Performance of
Duties. All services provided by the Service Provider
hereunder shall be performed in a timely manner and in accordance with good and
standard professional practice.
c. Conflicts of
Interest. During the term of this Agreement neither the
Service Provider nor any affiliate shall carry on or be engaged in or concerned
with or advise in the operating of any other business or enterprise which is in
conflict with their obligations under this Agreement or in competition with WMTC
or its subsidiary.
2.
Compensation and
Reimbursable Expenses.
a. Monthly
Fee. In consideration of the services provided by Service
Provider, WMTC shall pay to the Service Provider US$6,900 per month plus
reimbursable out of pocket expense - both being subject to Goods and Services
Tax in Canada (“GST”), with the monthly fee amount prorated for any partial
month of service. Payments hereunder shall be made on or before the
fifteenth (15th) day of
the calendar month following the month in which such services were
provided.
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b. Office Space and Support
Services Expense. Service Provider will provide WMTC with the
use of an office at the offices of WMTC for the times he performs the services
set forth herein at the WMTC offices.
3.
Term and
Renewal. The term of this Agreement shall be for a period of
five years from January 1, 2010, through December 31, 2015 (the “Original Expiration Date”),
unless it is terminated earlier as provided herein. Beginning on the
Original Expiration Date, and on each anniversary thereafter, unless it is
terminated earlier as provided herein or WMTC delivers written notice to the
Service Provider of its intention not to extend the Agreement at least three (3)
months before the Original Expiration Date or each anniversary date thereafter,
the term of this Agreement shall automatically be extended for additional
one-year terms. The restrictive covenants in paragraph 6 hereof shall
survive the termination of this Agreement.
4.
Termination.
a. Termination Without
Cause. Either WMTC or the Service Provider may terminate this
Agreement at any time without cause (as defined below), provided that it gives
written notice of termination to the other party at least three (3) months
before the date of such termination.
b. Termination For
Cause. WMTC shall be entitled at any time, with or without
prior notice, to terminate this Agreement for cause, in which case no
compensation or other fees (other than such fees that have already been earned
by Service Provider) shall be payable to the Service Provider after such
termination. “Cause” means the Service Provider or its principals’,
affiliates, agents’, employees’ or representatives’ (i) gross negligence in the
performance or non-performance of any material duties to WMTC; (ii) commission
of any material criminal act or fraud or of any act that affects adversely the
reputation of WMTC; (iii) habitual neglect of Service Provider’s duties that are
required to be performed under this Agreement; (iv) dishonesty; or (v) gross
misconduct. Such termination shall not prejudice any other remedy
under law or equity of WMTC and the failure of WMTC to terminate Service
Provider when cause exists shall not constitute the waiver of WMTC’s right to
terminate this Agreement at a later time. Termination under this
paragraph shall be considered for cause for purposes of this
Agreement.
5.
Termination upon
Change of Control. In the event of termination upon a change
of control of WMTC, the following provisions shall apply:
a. “Termination
Upon Change of Control” means:
(i) any
termination of the engagement of the Service Provider by WMTC without cause
during the period commencing on or after the date that WMTC first publicly
announces a definitive agreement that would result in a Change of Control (as
defined below), even though still subject to approval by WMTC’s stockholders and
other conditions and contingencies; or
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(ii) any
resignation by the Service Provider based on a diminution of responsibilities
where (1) such diminution of responsibilities occurs during the period
commencing on or after the date that WMTC first publicly announces a definitive
agreement that would result in a Change of Control (as defined below), even
though still subject to approval by WMTC’s stockholders and other conditions and
contingencies, and ending on the date which is twelve (12) months following the
Change of Control, and (2) such resignation occurs within one-hundred and twenty
(120) days following such diminution of responsibilities.
b. The
term “Termination Upon Change of Control” shall not include any other
termination, including a termination of the Service Provider (i) by WMTC for
cause; (ii) by WMTC as a result of the disability of a party; (iii) as a result
of the death of the party; or (iv) as a result of the voluntary termination of
the engagement by the party for reasons other than a diminution of
responsibilities.
c. “Change
of Control” means:
(i) any
“person” (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)), other than a trustee or
other fiduciary holding securities of WMTC under an employee benefit plan of
WMTC, becomes the “beneficial owner” (as defined in Rule 13d-3 promulgated under
the Exchange Act), directly or indirectly, of securities of WMTC representing
30% or more of (A) the outstanding shares of common stock of WMTC or (B) the
combined voting power of WMTC’s then-outstanding securities;
(ii) WMTC
is party to a merger or consolidation, or series of related transactions, which
results in the voting securities of WMTC outstanding immediately prior thereto
failing to continue to represent (either by remaining outstanding or by being
converted into voting securities of the surviving or another entity) at least
fifty (50%) percent of the combined voting power of the voting securities of
WMTC or such surviving or other entity outstanding immediately after such merger
or consolidation;
(iii) the
sale or disposition of all or substantially all of WMTC’s assets (or
consummation of any transaction, or series of related transactions, having
similar effect);
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(iv)
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there
occurs a change in the composition of the Board of Directors of WMTC
within a two-year period, as a result of which fewer than a majority of
the directors are incumbent
directors;
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(v) the
dissolution or liquidation of WMTC; or
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(vi) any
transaction or series of related transactions that has the substantial effect of
any one or more of the foregoing.
d. In
the event of termination upon a Change of Control, the Service Provider shall
receive the following compensation: (i) immediate payment of a
severance amount equal to three (3) times the highest annual base cash
compensation paid the Service Provider; (ii) the immediate vesting of any
outstanding unvested options, warrants, or other convertible instruments; (iii)
the pro rata amount of any bonuses for which the Service Provider is eligible;
(iv) the extension of the exercise period of any options, warrants, or other
convertible instrument for at least six months following such
termination.
6. Confidential
Information. The Service Provider recognizes and acknowledges
that certain information, including, but not limited to, information pertaining
to the financial condition of WMTC, its systems, methods of doing business,
agreements with customers or suppliers, or other aspects of the business of WMTC
or which are sufficiently secret to derive economic value from not being
disclosed (hereinafter “Confidential Information”) may be made available or
otherwise come into the possession of the Service Provider or PVM by reason of
this engagement with WMTC. Accordingly, the Service Provider agrees
that neither it nor its principals, affiliates, agents, employees, or
representatives will (either during or after the term of this engagement with
WMTC) disclose any Confidential Information to any person, firm, corporation,
association, or other entity for any reason or purpose whatsoever or make use to
their personal advantage or to the advantage of any third party, of any
Confidential Information, without the prior written consent of
WMTC. The Service Provider shall, upon termination of this
engagement, return to WMTC, and shall cause its principals, affiliates, agents,
employees, and representatives to return to WMTC, all documents which reflect
Confidential Information (including copies thereof). Notwithstanding
anything heretofore stated in this paragraph, the Service Provider’s obligations
under this Agreement shall not, after termination of Service Provider’s
engagement with WMTC, apply to information which has become generally available
to the public without any action or omission of the Service Provider (except
that any Confidential Information which is disclosed to any third party by an
employee or representative of WMTC who is authorized to make such disclosure
shall be deemed to remain confidential and protectable under this
provision).
7. Independent
Contractor. Service Provider agrees that in performing this
Agreement, the Service Provider is acting as an independent contractor and not
as an employee or agent of WMTC. As an independent contractor, the
Service Provider shall not be eligible for any benefits which WMTC may provide
to its employees. All persons, if any, hired by Service Provider to
perform this Agreement, including, but not limited to, the Original Service
Provider, shall be employees of the Service Provider and shall not be construed
as employees or agents of WMTC in any respect. The Service Provider
shall be responsible for all taxes, insurance and other costs and payments
legally required to be withheld or provided in connection with Service
Provider’s performance of this Agreement, including without limitation, all
withholding taxes, worker’s compensation insurance, and similar
costs.
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8.
Miscellaneous
Provisions.
a. Notice. All
notices required or permitted hereunder shall be in writing and shall be deemed
effective: (1) upon personal delivery; (2) when sent by facsimile at the number
set forth below; or (3) in the case of delivery by internationally recognized
overnight delivery service, when received, addressed as follows:
If to
WMTC to:
Xxxxxxx Xxxxxx 000, Xxxxxxxx
000
Xxx
Xxxxxx, Xxxxxxxx
Xxxxx
Attn: Xxxxxxx
X. Xxxxxxxxx, President
FAX: (00 0)
000-0000
With a
copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxx
Attorney at Law
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx Xxxx,
XX 00000
FAX: (000)
000-0000
If to the
Service Provider, to:
000 Xxxx
00xx
Xxxxxx
Xxxxx
Xxxxxxxxx, XX
Xxxxxx X0X
0X0
Attn: X.
X. Xxxxxxx
FAX: _______________________________
or to
such other address or addresses, or facsimile number or numbers, as either party
shall designate to the other in writing from time to time by like
notice.
b. Attorneys’
Fees. If any legal action or other proceeding is brought for
the enforcement of this Agreement, or because of an alleged dispute, breach,
default, or misrepresentation in connection with any of the provisions of this
Agreement, the successful or prevailing party or parties will be entitled to
recover reasonable attorneys’ fees and other costs incurred in that action or
proceeding, in addition to any other relief to which it or they may be
entitled.
c. Additional
Remedies. The Service Provider acknowledge and agree that, in
the event either such party shall violate any of the restrictions of Section 6
hereof, WMTC will be without adequate remedy at law and will therefor be
entitled to enforce such restrictions by temporary or permanent injunctive or
mandatory relief obtained in an action or may have at law or in equity, and the
Service Provider hereby consents to the jurisdiction of such court for such
purpose, provided that reasonable notice of any proceeding is given, it being
understood that such injunction shall be in addition to any remedy which WMTC
may have at law or otherwise.
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d. Entire Agreement;
Modification; Waiver. This Agreement constitutes the entire
agreement between or among the parties pertaining to the subject matter
contained in it and supersedes all prior and contemporaneous agreements,
representations, and understandings of the parties. No supplement,
modification, or amendment of this Agreement will be binding unless executed in
writing by all the parties or the applicable parties to be bound by such
amendment. No waiver of any of the provisions of this Agreement will
constitute a waiver of any other provision, whether or not similar, nor will any
waiver constitute a continuing waiver. No waiver will be binding
unless executed in writing by the party making the waiver.
e. Survival of Covenants,
Etc. All covenants, representations and warranties made herein
shall survive the making of this Agreement and shall continue in full force and
effect for a period of two years from the termination date of this Agreement, at
the end of which period no claim may be made with respect to any such covenant,
representation, or warranty unless such claim shall have been asserted in
writing to the indemnifying party during such period.
f. Assignment. This
Agreement, as it relates to the engagement of Service Provider, is a personal
contract and the rights and interests of the Service Provider hereunder may not
be sold, transferred, assigned, pledged or hypothecated, without the prior
written consent of WMTC, which consent may be withheld for any
reason. Notwithstanding the foregoing, the Service Provider may,
without the prior consent of WMTC, add PVM as additional service provider
hereunder at any time PVM becomes a wholly owned subsidiary of the Service
Provider, so long as PVM agrees to be bound by the terms of this Agreement as a
Service Provider, and thereafter the compensation payable pursuant to Section
2(a) hereof shall be paid to PVM.
g. Binding on
Successors. This Agreement will be binding on, and will inure
to the benefit of, the parties to it and their respective heirs, legal
representatives, successors, and assigns.
h. Governing Law and
Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of Utah, U.S.A., without reference to the
choice of law principals thereof. The parties hereto irrevocably
submit to the jurisdiction of the Courts of the State of Utah, U.S.A., located
in Salt Lake County and the United States District Court of Utah in any action
arising out of or relating to this Agreement, and hereby irrevocably agree that
all claims in respect of such action may be heard and determined in such state
or federal court. The parties hereto irrevocably waive, to the
fullest extent they may effectively do so, the defense of an inconvenient forum
to the maintenance of such action or proceeding. The parties further
agree, to the extent permitted by law, that final and unappealable judgment
against any of them in any action or proceeding contemplated above shall be
conclusive and may be enforced in any other jurisdiction within or outside the
United States by suit on the judgment, a certified copy of which shall be
conclusive evidence of the fact and amount of such judgment.
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i.
Rights Are
Cumulative. The rights and remedies granted to the parties
hereunder shall be in addition to and cumulative of any other rights or remedies
either may have under any document or documents executed in connection herewith
or available under applicable law. No delay or failure on the part of
a party in the exercise of any power or right shall operate as a waiver thereof
nor as an acquiescence in any default nor shall any single or partial exercise
of any power or right preclude any other or further exercise thereof or the
exercise of any other power or right.
j.
Severability. If
any provision of this Agreement is held invalid or unenforceable by any court of
final jurisdiction, it is the intent of the parties that all other provisions of
this Agreement be construed to remain fully valid, enforceable, and binding on
the parties.
k. Drafting. This
Agreement was drafted with the joint participation of the parties and/or their
legal counsel. Any ambiguity contained in this Agreement shall not be
construed against any party as the draftsman, but this Agreement shall be
construed in accordance with its fair meaning.
l. Headings. The
descriptive headings of the various paragraphs or parts of this Agreement are
for convenience only and shall not affect the meaning or construction of any of
the provisions hereof.
m. Number and
Gender. Wherever from the context it appears appropriate, each
term stated in either the singular or the plural shall include the singular and
the plural, and pronouns stated in either the masculine, the feminine, or the
neuter gender shall include the masculine, feminine, and neuter.
n. Counterparts; Facsimile
Execution. This Agreement may be executed in any number of
counterparts and all such counterparts taken together shall be deemed to
constitute one instrument. Delivery of an executed counterpart of
this Agreement by facsimile or email shall be equally as effective as delivery
of a manually executed counterpart of this Agreement. Any party
delivering an executed counterpart of this Agreement by facsimile or email also
shall deliver a manually executed counterpart of this Agreement, but the failure
to deliver a manually executed counterpart shall not affect the validity,
enforceability, or binding effect of this Agreement.
o. Full
Knowledge. By their signatures, the parties acknowledge that
they have carefully read and fully understand the terms and conditions of this
Agreement, that each party has had the benefit of counsel, or has been advised
to obtain counsel, and that each party has freely agreed to be bound by the
terms and conditions of this Agreement.
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IN WITNESS WHEREOF, each of the parties
hereto has executed this Agreement the respective day and year set forth
below.
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White
Mountain Titanium Corporation
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Date: February
7, 2010
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By
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/s/Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx
X. Xxxxxxxxx, President
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0834406
BC Ltd.
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Date: February
7, 2010
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By
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/s/ X.X. Xxxxxxx
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X.
X. Xxxxxxx, Principal
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